Brief of Save The Dunes and Alliance For The Great Lakes in Support of Summary Judgment

STATE OF INDIANA
)
)
COUNTY OF LAPORTE )
IN THE LAPORTE SUPERIOR COURT NO. 2

SS:
DON H. GUNDERSON and BOBBIE J.

GUNDERSON in their capacities of
Co-Trustees of the Don H. Gunderson
Living Trust dated November 14, 2006,
Plaintiffs,
)
)
)
)
)
)
v.
)
)
STATE OF INDIANA and INDIANA
)
DEPARTMENT OF NATURAL RESOURCES, )
Defendants,
)
)
***************************************** )
ALLIANCE FOR THE GREAT LAKES
)
and SAVE THE DUNES,
)
Intervenor-Defendants,
)
)
LONG BEACH COMMUNITY ALLIANCE,
)
PATRICK CANNON, JOHN WALL, DORIA
)
LEMAY, MICHAEL SALMON, and THOMAS
)
KING,
)
Intervenor-Defendants.
)
)
CASE NO. 46D02-1404-PL-0606
______________________________________________________________________________
COMBINED CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, BY ALLIANCE FOR THE
GREAT LAKES AND SAVE THE DUNES
______________________________________________________________________________
Gundersons lawsuit challenges Indianas sovereign ownership of the States shores of Lake
Michigan below the ordinary high water mark (OHWM). The lawsuit also attempts to strip
Indianas citizens of their public trust rights to use the disputed beach on the shore below
Gundersons upland property. This Court should deny Gundersons claims that he owns the
disputed beach and can exclude the public.
1
Over 170 years of equal footing doctrine and public trust doctrine underlie the States
ownership of the disputed beach and the publics rights of use. These doctrines were recognized
and brought into Indiana common law by our courts in State ex rel. Indiana Department of
Conservation v. Kivett, 228 Ind. 623, 95 N.E.2d 145 (Ind. 1950) and Lake Sand Co. v. State ex rel.
Attorney General, 68 Ind. App. 439, 120 N.E. 714 (Ind. Ct. App. 1918).
Intervenor-Defendants Alliance for the Great Lakes and Save the Dunes (Alliance-Dunes)
move this Court to (1) enter judgment as a matter of law for Defendants and Alliance-Dunes
pursuant to Indiana Trial Rule 56(C); (2) declare pursuant to Ind. Code 34-14-1 et seq. that the
State of Indiana owns the disputed shore of Lake Michigan below the OHWM and Indianas
citizens hold public trust rights to use that shore for recreation and other public uses; (3) deny
Plaintiffs motion for summary judgment.
Alliance-Dunes rely on their simultaneously filed memorandum of law in support of this
motion. The memorandum also timely responds to Plaintiffs Motion for Declaratory Summary
Judgment, filed October 31, 2014.
DESIGNATION OF EVIDENCE
In support of this cross motion for summary judgment, Alliance-Dunes rely on the record of
this proceeding, on admissible evidence and materials designated by Plaintiffs, and on the
following designated materials attached to this motion:
Alliance-Dunes designate eight exhibits pursuant to Ind. Trial Rule 56(C), as follows:
1. Exhibit 1: Graph of water levels in Lake Michigan from 1960 to 2012, available at U.S.
Army Corps of Engrs website specified on graph.
2
2. Exhibit 2: U.S. Army Corps of Engrs, Detroit District, Ordinary High Water Mark and
Low Water Datum Description, available at http://www.lre.usace.army.mil/ Missions/
GreatLakesInformation/Links/OrdinaryHighWaterMarkandLowWaterDatum.aspx
(last
visited Nov. 24, 2014).

3. Exhibit 3: U.S. Dept of Interior, Manual of Surveying Instructions 3-160, 3-162 (2009),
available
at
http://www.cfeds.org/docs/sml/ManualOfSurveyingInstructions2009
_060414.pdf.
4. Exhibit 4: Lake Michigan Coastal Program, Ind. Dept of Natural Res., Indiana Lake
Michigan
Shoreline:
Coastal
Hazards
Model
Ordinances
14,
available
http://www.in.gov/dnr/lakemich/files/lm-HazardOrd_TechnicalAssistance.pdf
at
(last
visited Nov. 24, 2014).

5. Exhibit 5: Indiana Dept of Natural Res., An Inventory of Man-Made Land Along the
Indiana Shoreline of Lake Michigan, Tech. Report No. 304 (April 30, 1979), available at
http://www.in.gov/nrc_dnr/lakemichigan/navtrib/navtribb.html (last visited Nov. 24,
2014).
6. Exhibit 6: Indiana Attorney General opinion dated November 22, 1978.
7. Exhibit 7: Lake Michigan Coastal Program, Ind. Natural Res. Commn and Dept of
Natural Res., Lake Michigan and Navigable Tributaries: Misconceptions and Issues of
Navigability, available at http://www.in.gov/nrc_dnr/lakemichigan/navtrib/ navtribb.html
(last visited Nov. 24, 2014).
8. Exhibit 8: LBLHA, LLC v. Town of Long Beach, No. 46C01-1212-PL-001941, slip op.
(LaPorte Cnty. Cir. Ct. Dec. 26, 2013).
3
VERIFICATION
I verify under penalties of perjury that the exhibits attached are true and accurate copies of the
relevant official and publicly available documents.
Dated: February 2, 2015
Respectfully submitted,
________________________________________
Jeffrey B. Hyman (Atty. No. 24625-89)
Conservation Law Center
116 S. Indiana Ave.
Bloomington, Indiana 47408
812.856.5737 [Voice]
812.855.1828 [Fax]
jbhyman@indiana.edu
wwweeks@indiana.edu
Attorney for Appellees Alliance for the Great Lakes and Save the Dunes.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing was served by
U.S. Mail, first class, postage prepaid, this 2nd day of February, 2015, on the following counsel of
record:
Michael V. Knight
D. Michael Anderson
Barnes & Thornburg LLP
600 1st Source Bank Center
100 North Michigan Street
South Bend, IN 46601
Jeffrey L Simnick
Office of Attorney General
IGCS-5th Floor
302 W. Washington Street
Indianapolis, IN 46204
Kurt R. Earnst
Braje, Nelson, & Janes LLP
126 E. 5th Street
Michigan City, IN 46360
Patricia F. Sharkey
Environmental Law Counsel, P.C.
Suite 3700, 180 North LaSalle St.
Chicago, IL 60601
Mark L. Phillips
Matthew J. Hagenow
Newby, Lewis, Kaminski &
Jones, LLP
916 Lincolnway
LaPorte, IN 46350
_______________________________
Jeffrey B. Hyman
STATE OF INDIANA
)
)
COUNTY OF LAPORTE )
IN THE LAPORTE SUPERIOR COURT NO. 2

SS:
DON H. GUNDERSON and BOBBIE J.

GUNDERSON in their capacities of
Co-Trustees of the Don H. Gunderson
Living Trust dated November 14, 2006,
Plaintiffs,
)
)
)
)
)
)
v.
)
)
STATE OF INDIANA and INDIANA
)
DEPARTMENT OF NATURAL RESOURCES, )
Defendants,
)
)
***************************************** )
ALLIANCE FOR THE GREAT LAKES
)
and SAVE THE DUNES,
)
Intervenor-Defendants,
)
)
LONG BEACH COMMUNITY ALLIANCE,
)
PATRICK CANNON, JOHN WALL, DORIA
)
LEMAY, MICHAEL SALMON, and THOMAS
)
KING,
)
Intervenor-Defendants.
)
)
CASE NO. 46D02-1404-PL-0606
______________________________________________________________________________
MEMORANDUM IN SUPPORT OF
COMBINED CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, BY ALLIANCE FOR THE
GREAT LAKES AND SAVE THE DUNES
______________________________________________________________________________
116 S. Indiana Ave., Bloomington, Indiana 47408
Telephone: (812) 856-5737
jbhyman@indiana.edu
Attorney for Appellees Alliance for the Great Lakes
and Save the Dunes
Dated February 2, 2015
TABLE OF CONTENTS
Page
INTRODUCTION AND ROAD MAP ........................................................................................... 1
DESIGNATION OF EVIDENCE PRECLUDING ENTRY OF SUMMARY JUDGMENT FOR
PLAINTIFFS AND SUPPORTING SUMMARY JUDGMENT FOR DEFENDANTS ............... 4
BURDEN AND STANDARD OF REVIEW ................................................................................. 5
ARGUMENT .................................................................................................................................. 6
I.
GUNDERSON CHALLENGES INDIANAS LONG-SETTLED OWNERSHIP OF LAKE MICHIGANS

SHORE AND INDIANA CITIZENS ASSOCIATED RIGHT TO USE THAT SHORE ...................... 6
A.
The Primary Dispute in This Case Concerns the Boundary Separating Public
Land From Privately-Owned Property on Indianas Lake Michigan Shore ........ 6
B.
Under the Equal Footing and Public Trust Doctrines, Indiana Received the Bed
of Lake Michigan, to be Held in Trust for Public Use, as an Incident of State
Sovereignty .......................................................................................................... 8
C.
II.
1.
Title to the bed of Lake Michigan passed to Indiana at statehood under

the equal footing doctrine ........................................................................ 8
2.
Indianas title to the bed of Lake Michigan is permanently imprinted

with the public trust ............................................................................... 10
3.
Federal law determines the initial boundary of equal footing title and the
imprinted public trust, whereas state law governs subsequent disposal of
equal footing land and discretionary expansion of the public trust ....... 11
No Deed or Other Instrument of Conveyance Is Necessary to Prove the States

Title to Equal Footing and Public Trust Lands .................................................. 14
AT STATEHOOD, INDIANA RECEIVED ALL OF THE LAKEBED BELOW THE OHWM,

INCLUDING THE DISPUTED BEACH, IRRESPECTIVE OF THE LOCATION OF THE INSTANT
WATERS EDGE ............................................................................................................... 14
A.
The Federal Government Did Not Survey or Patent Lands Below OHWM on
Navigable Waterbodies Because Those Lands Were Not Available for Sale to
Private Landowners ........................................................................................... 15
B.
Multiple State Courts Have Explained in Different Ways That Equal Footing
Land Is Bounded by the OHWM and Private Property Does Not Extend Below
OHWM Into Those Equal Footing Lands.......................................................... 17
TABLE OF CONTENTS (continued)

Page
III.
C.
Equal Footing Lands Below OHWM Remain Subject to State Ownership and
Public Trust Even When Temporarily Exposed ................................................ 19
D.
Although Various Authorities Have Described the Initial Boundary of Equal

Footing and Public Trust Lands From Different Perspectives, These Authorities
Are Consistent in Placing the Boundary at the OHWM .................................... 20
E.
The OHWM Is the Legal Boundary Separating State-Owned Shore Land From
Private Property, Even if Accretion Changes the Location of That Boundary.. 24
TODAY, INDIANA STILL OWNS THE DISPUTED BEACH AND HOLDS IT IN TRUST FOR ITS
CITIZENS, AND GUNDERSON HAS FAILED TO SHOW OTHERWISE .................................... 26
A.
B.
C.
Indiana Has Not Relinquished Title to the Disputed Beach Nor Abrogated
Public Trust Rights and Duties in Lake Michigan ............................................. 26
1.
No evidence shows that the State has conveyed its title in the disputed
beach ...................................................................................................... 26
2.
The actions of Indianas executive branch are inconsistent with

alienation of equal footing title to lands below OHWM........................ 27
3.
Indiana has not abrogated the public trust that applies to Lake
Michigan ................................................................................................ 29
Gunderson Has Failed to Designate Evidence Showing He Owns Any Property

Below Lake Michigans OHWM ....................................................................... 30
1.
Gunderson has failed to designate any evidence that the labels Lake
Michigan and Lake Edge mark the boundary of his property .......... 30
2.
Even if the labels Lake Michigan and Lake Edge were boundary
terms, Gunderson has failed to present evidence or authority showing
that these ambiguous labels describe the instant waters edge. ............. 31
3.
Regardless of the terminology used, the documents upon which

Gunderson relies are legally insufficient to delineate the boundary of
equal footing lands ................................................................................. 33
Court Decisions That Relinquished Equal Footing Title Do Not Govern This
Case.................................................................................................................... 34
1.
Indiana gave away title to its shore of the Ohio River in 1837 for reasons
not applicable to modern law or to Lake Michigan ............................... 35
ii
TABLE OF CONTENTS (continued)

Page
2.
The Ohio and Illinois decisions that relinquished title do not apply to
Indiana ................................................................................................... 36
IV. INDIANA CITIZENS HOLD THE RIGHT TO RECREATE ON THE BED OF LAKE MICHIGAN
BELOW THE OHWM IRRESPECTIVE OF WHO HOLDS BARE TITLE TO THE SHORE .......... 37
A.
The Public Trust Doctrine Protects Indiana Citizens Right to Recreate on the
Shore of Lake Michigan .................................................................................... 37
B.
Public Trust Rights and Obligations Apply to the Shore of Lake Michigan
Regardless of Who Holds Bare Title ................................................................. 41
CONCLUSION ............................................................................................................................. 41
WORD COUNT CERTIFICATION ............................................................................................ 42
CERTIFICATE OF SERVICE ..................................................................................................... 43
iii
TABLE OF AUTHORITIES
Page(s)
INDIANA CASES
Ayers v. Huddleston,
30 Ind. App. 242, 66 N.E. 60 (Ind. Ct. App. 1903) ................................................................. 31
Bainbridge v. Sherlock,
29 Ind. 364, 1868 WL 2977 (Ind. 1868) ............................................................................ 35, 36
Clark v. Clark,
971 N.E.2d 58 (Ind. 2012) ....................................................................................................... 29
Hinshaw v. Bd. of Commrs,
611 N.E.2d 637 (Ind. 1993) ..................................................................................................... 29
Interstate Cold Storage, Inc. v. General Motors Corp.,
720 N.E.2d 727 (Ind. Ct. App. 1999), trans. denied, 735 N.E.2d 230 (Ind. 2000) .................. 6
Irvine v. Rare Feline Breeding Center, Inc.,
685 N.E.2d 120 (Ind. Ct. App. 1997), trans. denied, 698 N.E.2d 1183 (Ind. 1998) ............... 29
Lake Sand Co. v. State ex rel. Attorney General,
68 Ind. App. 439, 120 N.E. 714 (Ind. Ct. App. 1918) ...................................................... passim
Monroe Guar. Ins. Co. v. Magwerks Corp.,
829 N.E.2d 968 (Ind. 2005) ....................................................................................................... 5
Pierce v. Bank One-Franklin, NA,
618 N.E.2d 16 (Ind. Ct. App. 1993).......................................................................................... 5
Powell v. Am. Health Fitness Ctr.,
694 N.E.2d 757 (Ind. Ct. App. 1998)........................................................................................ 5
Ritz v. Ind. & Ohio R.R., Inc.,
632 N.E.2d 769 (Ind. Ct. App. 1994)......................................................................................... 5
Sheets v. Stiefel,
117 Ind. App. 584, 74 N.E.2d 921 (Ind. Ct. App. 1947) (en banc) ........................................... 5
Sherlock v. Bainbridge,
41 Ind. 35 (1872)................................................................................................................ 36, 38
iv
TABLE OF AUTHORITIES (continued)

Page(s)
INDIANA CASES (continued)
State ex rel. Ind. Dept of Conservation v. Kivett,
228 Ind. 623, 95 N.E.2d 145 (Ind. 1950) .......................................................................... passim
Stinson v. Butler,
4 Blackf. 285 (Ind. 1837) ................................................................................................... 35, 36
U-Haul Intl, Inc. v. Nulls Mach. and Mfg. Shop,
736 N.E.2d 271 (Ind. Ct. App. 2000), trans. denied, 753 N.E.2d 8 (Ind. 2001) ....................... 6
Wilson v. Powell,
37 Ind. App. 44, 75 N.E. 611 (Ind. Ct. App. 1905) ................................................................. 31
FEDERAL CASES
Barney v. Keokuk,
94 U.S. 324 (1876) ............................................................................................................ passim
Borax Consol. Ltd. v. City of Los Angeles,
296 U.S. 10 (1935) ................................................................................................................... 34
Handlys Lessee v. Anthony,
18 U.S. 374 (1820) ................................................................................................................... 35
Idaho v. Coeur dAlene Tribe of Idaho,
521 U.S. 261 (1997) ................................................................................................................. 10
Ill. Cent. R.R. Co. v. Illinois,
146 U.S. 387 (1892) .......................................................................................................... passim
Oklahoma v. Texas,
260 U.S. 606 (1923) ................................................................................................................. 33
Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co.,
429 U.S. 363 (1977) .......................................................................................................... passim
Phillips Petroleum Co. v. Mississippi,
484 U.S. 469 (1988) ................................................................................................................... 8
v

Page(s)
FEDERAL CASES (continued)
Pollards Lessee v. Hagan,
44 U.S. 212 (1845) ......................................................................................................... 9, 34, 36
PPL Montana, LLC v. Montana,
132 S. Ct. 1215 (2012) ...................................................................................................... passim
Shively v. Bowlby,
152 U.S. 1 (1894) .............................................................................................................. passim
United States v. Alaska,
521 U.S. 1 (1997) ..................................................................................................................... 22
United States v. Carstens,
982 F.Supp.2d 874 (N.D. Ind. 2013) ....................................................................... 3, 19, 2223
United States v. Claridge,
279 F. Supp. 87 (D. Ariz. 1966), affd, 416 F.2d 933 (9th Cir. 1969), cert. denied,
397 U.S. 961 (1970) ................................................................................................................. 23
United States v. Kansas City Life Ins. Co.,
339 U.S. 799 (1950) ................................................................................................................. 33
United States v. Robertson Terminal Warehouse, Inc.,
575 F.Supp.2d 210 (D.D.C. 2008), affd sub nom United States v. Old Dominion Boat Club,
630 F.3d 1039 (D.C. Cir. 2011) ............................................................................................... 22
OTHER STATE CASES

Arnold v. Mundy,
6 N.J. L. 1 (1821) ................................................................................................................... 38
Atty Gen. v. Woods,
108 Mass. 436 (1871) ............................................................................................................. 38
Borough of Neptune City v. Borough of Avon-By-The-Sea,
294 A.2d 47 (N.J. 1972)........................................................................................................... 40
vi

Page(s)
OTHER STATE CASES (continued)
Brundage v. Knox,
117 N.E. 123 (Ill. 1917) ..................................................................................................... 36, 37
Coastal Petroleum Co. v. Am. Cyanamid Co.,
492 So.2d 339 (Fla. 1986), cert. denied, 479 U.S. 1065 (1987) .............................................. 14
Cobb v. Lincoln Park Comrs,
67 N.E. 5 (Ill. 1903) ................................................................................................................. 41
Ex Parte Powell,
70 So. 392 (Fla. 1915).............................................................................................................. 11
Glass v. Goeckel,
703 N.W.2d 58 (Mich. 2005), rehg denied, 474 Mich. 1201 (Mich. 2005),
cert. denied, 546 U.S. 1174 (2006) ................................................................................... passim
Illinois Steel Co. v. Bilot,
84 N.W. 855 (Wis. 1901), rehg denied, 109 Wis. 418 (Wis. 1901) ....................................... 34
In re Sanders Beach,
147 P.3d 75 (Idaho 2006), rehg denied, (Nov. 20, 2006)....................................................... 20
Lamprey v. Metcalf,
53 N.W. 1139 (Minn. 1893)..................................................................................................... 39
Martin v. Busch,
112 So. 274 (Fla. 1927)............................................................................................................ 17
Matteson v. Batchelder,
32 A.3d 1059 (Me. 2011)......................................................................................................... 32
Mitchell v. City of St. Paul,
31 N.W.2d 46 (Minn. 1948)..................................................................................................... 41
Nekoosa-Edwards Paper Co. v. R.R. Commn,
228 N.W. 144 (Wis. 1929), affd 283 U.S. 787 (1931) ........................................................... 39
Nielsen v. Stratbucker,
325 N.W.2d 391 (Iowa 1982) ...................................................................................... 18, 25, 33
vii

Page(s)
People ex rel. Scott v. Chicago Park Dist.,
360 N.E.2d 773 (Ill. 1976) ................................................................................................. 3940
Reep v. State,
841 N.W.2d 664 (N.D. 2013), rehg denied, (Feb. 24, 2014) ........................................... 18, 33
Rice v. Ruddiman,
10 Mich. 125 (1862) ................................................................................................................ 38
R.W. Docks & Slips v. State of Wisconsin,
628 N.W.2d 781 (Wis. 2001), cert. denied, 534 U.S. 1041 (2001) ................................... 17, 39
Seaman v. Smith,
24 Ill. 521 (Ill. 1860) .......................................................................................................... 36, 37
Shaffer v. Baylors Lake Assn,
141 A.2d 583 (Pa. 1958) .......................................................................................................... 41
State v. George C. Stafford & Sons, Inc.,
105 A.2d 569 (N.H. 1954) ................................................................................................. 18, 33
State v. Jefferson Island Salt Mining Co.,
163 So. 145 (La. 1935), cert. denied, 297 U.S. 716 (1936), rehg denied,
297 U.S. 729 (1936) .......................................................................................................... 14, 32
State Dept of Natural Res. v. Pankratz,
538 P.2d 984 (Alaska 1975)..................................................................................................... 17
State ex rel. Sprynczynatyk v. Mills,
523 N.W.2d 537 (N.D. 1994) .................................................................................................. 18
State ex rel. Merrill v. Ohio Dept. of Natural Res.,
955 N.E.2d 935 (Ohio 2011).............................................................................................. 36, 37
State of Iowa v. Sorensen,
436 N.W.2d 358 (Iowa 1989) ............................................................................................ 18, 39
State of Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co.,
582 P.2d 1352 (Or. 1978), on remand from 429 U.S. 363 (1977) ..................................... 2425
viii

Page(s)
State of Wisconsin v. Trudeau,
408 N.W.2d 337 (Wis. 1987), rehg denied, 145 Wis.2d. 894 (Wis. 1987), cert. denied,
484 U.S. 1007 (1988) ............................................................................................. 17, 18, 33, 41
West v. Smith,
511 P.2d 1326 (Idaho 1973)......................................................................................... 1819, 23
White v. Hughes,
190 So. 446 (Fla. 1939)............................................................................................................ 40
Wright v. Day,
33 Wis. 260 (Wis. 1873) .......................................................................................................... 32
INDIANA STATUTES
Indiana Fill and Patent Statute, Ind. Code 14-18-6-1 et seq..................................................26
Indiana Fill and Patent Statute, Ind. Code 14-18-6-4, 14-18-6-6 ..........................................26
Lake Preservation Act, Indiana Code 14-26-2-1 et seq. .......................................................... 29
INDIANA TRIAL RULES

Indiana Rule of Trial Procedure 56 ................................................................................................. 4
INDIANA REGULATIONS
312 IAC 1-1-26 ..................................................................................................................... 7, 7 n.1
312 IAC 6-1-1(b) .......................................................................................................................... 27
312 IAC 6-7-7(d) .......................................................................................................................... 27
312 IAC 6-8-3(c)........................................................................................................................... 27
ix

Page(s)
INDIANA ATTORNEY GENERAL OPINIONS
Op. Ind. Atty Gen. No. 90-8 (Apr. 17, 1990), 1990 WL 484814 ................................................ 27
Op. Ind. Atty Gen. No. 80-26 (Oct. 8, 1980), 1980 WL 26192 .................................................. 27
FEDERAL STATUTES
Submerged Lands Act, 43 U.S.C. 1301 et seq. ........................................................................ 22
Submerged Lands Act, 43 U.S.C. 1301(a)(1) ............................................................................ 22
OTHER AUTHORITIES
Richard K. Norton et al., Drawing Lines in Law Books and on Sandy Beaches: Marking
Ordinary High Water on Michigans Great Lakes Shorelines under the Public Trust
Doctrine, 39 Coastal Mgmt. 133 (2011) .................................................................................... 7
Kenneth K. Kilbert, The Public Trust Doctrine and the Great Lakes Shores,
58 Clev. St. L. Rev. 1 (2010) .......................................................................................... 9, 10, 41
U.S. Dept of Interior, Manual of Surveying Instructions (2009) ............................... 16, 22, 25, 33
4 Tiffany Real Prop. 1220 (3d ed. 2014) ................................................................................... 24
93 C.J.S. Waters 179, 182 (2014) ...................................................................................... 24 n.2
12 Am. Jur. 2d Boundaries 112 ................................................................................................. 31
23 Am. Jur. 2d Deeds 274 (2013) .............................................................................................. 33
Great Lakes Commission,
Great Lakes Restoration at Work in Indiana (March 2013), available at
http://www.glc.org/files/main/Indiana-GLRIStateFactsheet2013-final-Feb28.pdf ................. 40

Page(s)
EXHIBITS
Alliance-Dunes Ex. 1 ...................................................................................................................... 7
Alliance-Dunes Ex. 2 ................................................................................................................ 7 n.1
Alliance-Dunes Ex. 3 .................................................................................................. 16, 22, 25, 33
Alliance-Dunes Ex. 4 .............................................................................................................. 25, 28
Alliance-Dunes Ex. 5 .................................................................................................................... 26
xi
INTRODUCTION AND ROAD MAP

Upon admission to the Union in 1816, Indiana received title to the bed of Lake Michigan within
the States borders, to be held in trust for the public. As the U.S. Supreme Court has long
recognized, at statehood the natural ordinary high water mark (natural OHWM or simply
OHWM) is the initial boundary between the state-owned beds of navigable waters, which must
remain open to the public, and dry uplands, which are subject to private acquisition. Thus, the
Lakebed obtained by Indiana at statehood included the intermittently submerged shore i.e., the
margin of land between the low water mark and the OHWM. Today, Indiana continues to own this
Lakebed. With the exception of select parcels not in dispute here, Indiana never relinquished its
initial title to the Lake Michigan shore, and Indianas citizens maintain the right to recreate along
that shore.
Despite over 170 years of judicial precedent supporting the above rule, Gunderson now claims
that his property includes at least part of the shore lakeward of his house (the disputed beach),
extending below the OHWM to the instant waters edge i.e., the point at which the water meets
the temporarily exposed beach at any given moment. Gundersons designated evidence, however,
does not corroborate his claim. And applicable law does not support the argument for an initial
waters edge (or a low water mark) boundary between private and public land on the Lakeshore.
Nonetheless, Gunderson seeks to have this Court foreclose all public use of the disputed beach. If
Gunderson prevails, he will be able to exclude everyone, including Alliance for the Great Lakes
and Save the Dunes members, and all other Indiana citizens, from sitting on or walking across the
disputed beach. Similar claims by other upland landowners would have the potential to privatize
large amounts of Indianas Lake Michigan shoreline.
1
The key question of this case is thus: What is the boundary between public and private land
on Indianas Lake Michigan shore? The law governing the boundary between public and private
land on the shores of navigable waterbodies, such as Lake Michigan, is embodied in two legal
doctrines long articulated by the U.S. Supreme Court: the equal footing doctrine and the related
public trust doctrine. The equal footing doctrine provides that each new state (including Indiana),
upon admission to the Union, automatically obtains title to the beds of its navigable waterbodies
i.e., all lands below the OHWM. The public trust doctrine, in its traditional form, specifies that
each state holds title to these beds of navigable waterbodies in trust for its citizens, and this trust
cannot be extinguished. The Indiana Supreme Court has recognized the equal footing doctrine, and
the Indiana Court of Appeals has recognized and applied the public trust doctrine. Gunderson thus
asks this Court to reevaluate questions of great public importance and to reject these longestablished principles of law.
This Court can resolve the identity of the boundary between public and private land on Lake
Michigans shore in two steps: first, determine whether the intermittently exposed shore is part of
the equal footing lands that Indiana received at statehood, to be held subject to the public trust
doctrine; and if so, determine whether Indiana subsequently gave away the portion of this shore
containing the disputed beach.
The first step involves determining the boundary of the bed of Lake Michigan that initially
passed to Indiana in 1816 under the equal footing doctrine. The U.S. Supreme Court has made
clear that the identity of this initial boundary is a matter of federal law. Substantial federal authority
and corroborating state-court decisions explain that the bed of a navigable waterbody initially
passed to a state includes all land below the OHWM. This includes any shore land, whether or not
2
it is presently exposed. See, e.g., United States v. Carstens, 982 F. Supp. 2d 874, 878 (N.D. Ind.
2013) (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.). Therefore, at statehood, Indiana received
equal footing title to its entire Lakebed below the OHWM, which includes the disputed beach.
That title came imprinted with the public trust. The OHWM is thus the initial boundary of both
the States title and the publics rights of use.
The second step is to determine whether the State ever gave away its equal footing title or its
citizens public trust rights in the disputed beach. Having acquired the Lakebed at statehood,
Indiana may subsequently dispose of this property, but only if authorized by an act of the
Legislature. State ex rel. Ind. Dept of Conservation v. Kivett, 228 Ind. 623, 95 N.E.2d 145, 148
(Ind. 1950). Absent an authorized conveyance of title in a particular portion of the Lakebed, the
State continues to own that portion of the bed. Gunderson has failed to designate any evidence
indicating that the State has conveyed land below OHWM on the disputed beach. Therefore, the
boundary of State ownership on the disputed beach remains the OHWM.
Even if Indiana had conveyed title in the disputed beach to Gunderson or a predecessor in
interest, that title would still be imprinted with the public trust. The public trust doctrine
distinguishes bare title (the jus privatum) from the public rights (the jus publicum) that burden the
bare title. Neither Indiana nor any other entity has authority to extinguish the citizens public trust
rights in the Lakebed. Lake Sand Co. v. State ex rel. Attorney General, 68 Ind. App. 439, 120 N.E.
714, 716 (Ind. Ct. App. 1918). Therefore, irrespective of ownership, the boundary of the public
trust on the disputed beach remains the OHWM.
Alliance for the Great Lakes and Save the Dunes (Alliance-Dunes) are entitled to summary
judgment and a declaration that the State owns the disputed beach in trust for public uses such as
recreation. The disputed beach was initially, and to this day remains, public land.
Our argument is presented in four main sections. In Section I, we clarify the dispute in this
lawsuit and examine the governing legal doctrines. In Sections II and III, we present the two-step
analysis that resolves the boundary question at the center of this litigation. Specifically, Section II
summarizes the substantial body of authority demonstrating that the bed of Lake Michigan
obtained by Indiana at statehood included all land below OHWM, including the disputed beach,
even if temporarily exposed. We are aware of no authority even suggesting that the waters edge
defines the boundary of equal footing title. Then in Section III we demonstrate that the State has
neither relinquished its initial title to the disputed beach nor attempted to abrogate the publics
right to use that beach. We also show that Gunderson has failed to designate any evidence proving
he owns any property below the OHWM. We conclude in Section IV by contending that Indianas
public trust doctrine protects recreational use of the Lake Michigan shore.
DESIGNATION OF EVIDENCE PRECLUDING SUMMARY JUDGMENT FOR
PLAINTIFFS AND SUPPORTING SUMMARY JUDGMENT FOR DEFENDANTS
Alliance-Dunes designate eight exhibits pursuant to Ind. Trial Rule 56(C), as follows:
Exhibit 1: Graph of water levels in Lake Michigan between 1960 and 2012.
Exhibit 2: U.S. Army Corps of Engrs, Detroit District, Ordinary High Water Mark and Low
Water Datum Description.
Exhibit 3: U.S. Dept of Interior, Manual of Surveying Instructions 3-160, 3-162, 8-2 (2009).
Exhibit 4: Lake Michigan Coastal Program, Indiana Dept of Natural Res., Indiana Lake
Michigan Shoreline: Coastal Hazards Model Ordinances 14.
Exhibit 5: Indiana Dept of Natural Res., An Inventory of Man-Made Land Along the Indiana
Shoreline of Lake Michigan, Tech. Report No. 304 (April 30, 1979).
Exhibit 6: Indiana Attorney General opinion dated November 22, 1978.
Exhibit 7: Indiana Natural Res. Commn and Dept of Natural Res., Lake Michigan and Navigable
Tributaries: Misconceptions and Issues of Navigability.
Exhibit 8: LBLHA, LLC v. Town of Long Beach, No. 46C01-1212-PL-001941, slip op. (LaPorte
Cnty. Cir. Ct. Dec. 26, 2013).
Our motion for summary judgment contains full citations for these exhibits. We also rely on
the exhibits attached to Gundersons motion, if admissible. Gundersons materials need not be redesignated. Powell v. Am. Health Fitness Ctr., 694 N.E.2d 757, 75960 (Ind. Ct. App. 1998). We
also comply with the designation requirement by referencing the portions of the record relied upon.
Pierce v. Bank One-Franklin, NA, 618 N.E.2d 16, 19 (Ind. Ct. App. 1993).
BURDEN AND STANDARD OF REVIEW
A plaintiff who seeks to quiet title, as Gunderson does, bears the burden of proving that he or
she owns the disputed property. Ritz v. Ind. & Ohio R.R., Inc., 632 N.E.2d 769, 772 (Ind. Ct. App.
1994). The plaintiff cannot meet this burden by relying on alleged weaknesses in the defendants
title. See Sheets v. Stiefel, 117 Ind. App. 584, 74 N.E.2d 921, 923 (Ind. Ct. App. 1947) (en banc).
A party moving for summary judgment must make a prima facie showing that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005). A genuine issue
5
of material fact exists where facts concerning an issue which would dispose of the litigation are
in dispute or where the undisputed material facts are capable of supporting conflicting inferences
on such an issue. U-Haul Intl, Inc. v. Nulls Mach. and Mfg. Shop, 736 N.E.2d 271, 274 (Ind. Ct.
App. 2000) (quoting Interstate Cold Storage, Inc. v. General Motors Corp., 720 N.E.2d 727, 729
30 (Ind. Ct. App. 1999)).
ARGUMENT
I. GUNDERSON CHALLENGES INDIANAS LONG-SETTLED OWNERSHIP OF LAKE MICHIGANS
SHORE AND INDIANA CITIZENS ASSOCIATED RIGHT TO USE THAT SHORE.
In this section, we clarify the main question of this litigation, examine the equal footing and
public trust doctrines that govern its resolution, and show that no deed is required to prove that the
State received and holds title to the bed of Lake Michigan.
A. The Primary Dispute in This Case Concerns the Boundary Separating Public Land
From Privately-Owned Property on Indianas Lake Michigan Shore.
Gunderson claims that his private property extends to the instant waters edge on the disputed
beach. See, e.g., Gunderson Br. 2, 3, 5. Although Gundersons arguments about the public trust
doctrine are inconsistent e.g., compare the statement [t]he Public Trust is in water, not land
with the assertion that [o]nly navigable water and land beneath navigable water is encumbered
by the public trust (Gunderson Br. 8) he appears to conclude that the land is encumbered only
if it is covered by navigable water. Id. at 9. In essence, Gunderson argues that he owns any part
of the disputed beach not currently submerged, and when shore land is covered by water,
ownership and rights of use shift back to the public. Gundersons burden is thus to establish a
prima facie case that he owns the disputed beach to the instant waters edge.
If Gunderson were to prevail, the location of the boundary separating public from private land
would shift with every gust of wind and every change in the Lakes water level. On a gentlysloping shore, a relatively small change in water level can translate into a relatively large change
in the amount of beach currently under water. Given the recorded fluctuations in the levels of Lake
Michigan, the location of the waters edge will likely continue to vary widely over short time
scales. See Alliance-Dunes Ex. 1 (showing that water levels of Lake Michigan are highly variable);
Richard K. Norton et al., Drawing Lines in Law Books and on Sandy Beaches: Marking Ordinary
High Water on Michigans Great Lakes Shorelines under the Public Trust Doctrine, 39 Coastal
Mgmt. 133, 14147 (2011) (discussing Lake Michigan water levels). Thus, Gundersons scheme
would result in rapidly shifting and highly unpredictable property lines.
In conflict with Gundersons arguments is a substantial body of authority demonstrating that,
since statehood, Indiana has owned the disputed beach and the remainder of the Lakebed below
the OHWM, in trust for the public. Absent an express conveyance by the State pursuant to
legislation, private property cannot extend lakeward of the natural OHWM. 1 The shore below the
natural OHWM is, by definition, covered by water intermittently. See 312 IAC 1-1-26(1) (defining
OHWM as line on the shore of a waterway established by the fluctuations of water and indicated
by physical characteristics); Glass v. Goeckel, 703 N.W.2d 58, 7173 (Mich. 2005) (explaining
that land below OHWM is temporarily exposed due to water level fluctuations). The OHWM
boundary between public and private land is independent of the location of the waters edge at any
Indiana has adopted an administrative OHWM for Lake Michigan, currently set at an elevation
of 581.5 feet above reference level. See Alliance-Dunes Ex. 2; 312 IAC 1-1-26(2). The adoption
of an administrative OHWM does not change the legal rule that absent an express conveyance by
the State pursuant to legislation, private property cannot extend lakeward of the natural OHWM.
7
particular moment. That is, the State owns the Lakebed regardless of whether it is under water
today, so long as it is at least intermittently submerged.
B. Under the Equal Footing and Public Trust Doctrines, Indiana Received the Bed of
Lake Michigan, to be Held in Trust for Public Use, as an Incident of State
Sovereignty.
Gundersons action challenges the equal footing and public trust doctrines, which apply to both
tidal seas and to non-tidal navigable waters such as Lake Michigan. Phillips Petroleum Co. v.
Mississippi, 484 U.S. 469, 479 (1988); Barney v. Keokuk, 94 U.S. 324, 33738 (1876); see also
Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 43537 (1892) [hereinafter Illinois Central] (explaining
that Lake Michigan, although non-tidal, can be treated as a tidal sea for the purposes of the equal
footing and public trust doctrines). The following discussion summarizes these doctrines and
clarifies their relationship.
1. Title to the bed of Lake Michigan passed to Indiana at statehood under the equal
footing doctrine.
The equal footing doctrine establishes that Indiana, at statehood, automatically obtained
ownership title to the beds of its navigable waters, to be held in trust for public use. See PPL
Montana, LLC v. Montana, 132 S. Ct. 1215, 122728 (2012) (The title consequences of the equalfooting doctrine can be stated in summary form: Upon statehood, the State gains title within its
borders to the beds of waters then navigable . . . .); Illinois Central, 146 U.S. at 452 (explaining
that equal footing title is a title different in character from that which the state holds in lands
intended for sale and that this title is held in trust for the people of the state). Although the term
equal footing first appeared in the Northwest Ordinance of 1787, the equal footing doctrine
derives from the U.S. Constitution and does not depend on the Northwest Ordinance. See PPL
Montana, 132 S. Ct. at 1222, 1227 (explaining that the passing of equal footing title to the states
is based in the U.S. Constitution); Illinois Central, 146 U.S at 434 (explaining that the equality
prescribed by the Northwest Ordinance for the states in the Northwest Territory would have
existed even without the Ordinance). The U.S. Supreme Court developed the equal footing
doctrine beginning in the 1840s with Pollards Lessee v. Hagan, 44 U.S. 212 (1845). See Oregon
ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 37072, 37576 (1977);
Kenneth K. Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev.
1, 1726 (2010). The phrase equal footing title is shorthand for a states initial title to equal
footing lands, i.e., the beds of navigable waterbodies initially passed at statehood under the equal
footing doctrine.
The idea behind the equal footing doctrine is that each new state admitted to the Union should
have the same rights and sovereignty in its navigable waterbodies as the original states (the thirteen
colonies) have in their navigable waterbodies. The original states, after winning the Revolutionary
War, gained title previously held by England to the beds of navigable waterbodies within their
borders. The title held by England was already imprinted with the public trust. See Shively v.
Bowlby, 152 U.S. 1, 1213, 57 (1894). Since the original states could gain nothing more than what
England had lost, their inherited title also was imprinted with the public trust. Id. Then, to ensure
that each state subsequently admitted to the Union is on an equal footing with the original states,
each new state automatically receives title to the beds of its navigable waterbodies, similarly
imprinted with the public trust. See PPL Montana, 132 S. Ct. at 1235 (observing that the State
takes title to navigable waters and their beds in trust for the public). The chain of equal footing
title to navigable waterbodies and the trusteeship of those resources thus extends from England, to
the original thirteen states, to the new states subsequently admitted, including Indiana.
Pending the admission of new states, the federal government temporarily holds the equal
footing title to be passed at statehood. The federal government does not grant equal footing title
to new states, however. Each state automatically acquires ownership and trustee responsibilities
upon admission to the Union, by virtue of the U.S. Constitution. See, e.g., PPL Montana, 132 S.
Ct. at 1227; Kilbert, 58 Clev. St. L. Rev. at 1726.
The Indiana Supreme Court recognized and applied the equal footing doctrine in Kivett, 95
N.E.2d 145. After considering several equal footing decisions, the Kivett Court explained that
Indiana acquired title to the beds of the navigable waters of the State when Indiana, in fact became
a State. Id. at 148. The Court also recognized procedural constraints on Indianas ability to dispose
of equal footing land. Referring to the beds of navigable waters acquired by Indiana at statehood,
the Court ruled that the State could not part with title to such real estate, except by an act of the
Legislature. Id. (emphasis added).
2. Indianas title to the bed of Lake Michigan is permanently imprinted with the
public trust.
The concept of a public trust has broad and ancient roots, including but not limited to Roman
law. See Idaho v. Coeur dAlene Tribe of Idaho, 521 U.S. 261, 284 (1997). The U.S. Supreme
Court and the states have, however, developed a uniquely American public trust doctrine. The
Supreme Court and many state courts have recognized that the public trust is imprinted on equal
footing title by declaring that equal footing land is to be held by the states in trust for the benefit
of the public. See id. at 283 (explaining that equal footing lands are lands with a unique status in
10
the law and infused with a public trust the State itself is bound to respect); Shively, 152 U.S. at
13, 4950; Illinois Central, 146 U.S. at 452; see also Ex Parte Powell, 70 So. 392, 395 (Fla. 1915)
(Among the rights . . . acquired [under the equal footing doctrine] by the State of Florida is the
right to own and hold the lands under navigable waters within the state, including the shores or
space between the ordinary high and low water marks, for the benefit of the people of the state . .
. .) (cited with approval in Lake Sand, 120 N.E. at 716).
Indiana has recognized that the public trust is an essential and permanent element of state
sovereignty and has incorporated the doctrine into state common law. Specifically, in Lake Sand,
the Indiana Court of Appeals sought to determine the nature of the title of the state to the bed of
Lake Michigan lying within its border. 120 N.E. at 715. After the court considered several public
trust cases, including Ex Parte Powell (cited above), the court adopted the traditional constraint on
equal footing title: The state in its sovereign capacity is without power to convey or curtail the
right of its people in the bed of Lake Michigan. Id. at 716. This constraint that the State is
without power to abrogate the public trust reflects the principle expressed in Illinois Central that
the public trust is an inherent attribute of state sovereignty and is inalienable. See 146 U.S. at 453
(The state can no more abdicate its [public] trust . . . than it can abdicate its police powers in the
administration of government and the preservation of the peace.).
3. Federal law determines the initial boundary of equal footing title and the
imprinted public trust, whereas state law governs subsequent disposal of equal
footing land and discretionary expansion of the public trust.
The initial boundary of the bed of a navigable waterbody received under the equal footing
doctrine is a question of federal law. See Corvallis Sand & Gravel, 429 U.S. at 376
([D]etermination of the initial boundary between a riverbed, which the State acquired under the
11
equal-footing doctrine, and riparian fast lands [must] be decided as a matter of federal law rather
than state law.). This makes sense. As described above, the U.S. Constitution requires that all
states enter the Union with the same sovereign authority regarding the beds of their navigable
waterbodies. If each state were to independently delineate the boundary of its equal footing lands
passed at statehood, the uniformity and equality required by the doctrine would be destroyed.
Determining the initial transfer of equal footing land as a matter of federal law preserves
uniformity across states and also ensures the reliability of federal grants to abutting uplands.
Once title to the beds of navigable waterbodies vests at statehood, a state is free to convey its
bare title in accordance with its own laws. See Corvallis Sand & Gravel, 429 U.S. at 370, 376
(explaining that [a]lthough federal law may fix the initial boundary line between fast lands and
the riverbeds at the time of a States admission to the Union, the determination of the initial equal
footing boundary under federal law is solely for the purpose of fixing the boundaries of the
riverbed acquired by the State and thereafter . . . the land is subject to the laws of the State). In
Indiana, the alienation of any equal footing land requires express legislative approval. Kivett, 95
N.E.2d at 148.
In addition, after obtaining equal footing title, a state may expand the scope (i.e., content) of
the imprinted public trust by protecting any number of specific public uses. Under Indiana law,
although the State can determine the range of public trust uses that apply to a waterbody, the State
lacks the power to convey or curtail public trust rights in Lake Michigan. See Lake Sand, 120
N.E. at 716.
The U.S. Supreme Court recently reiterated the above principles in PPL Montana, 132 S. Ct.
1215. In that case, the specific issue was whether Montana had equal footing title to the beds of
12
three rivers, thus allowing the state to collect rent from hydroelectric facilities. The Court ruled
that the rivers do not meet the federal test of navigability for title and thus the beds of these
rivers did not pass to the state under the equal footing doctrine. Id. at 123334. According to the
Court, no state can make up its own rule for determining navigability for title that would enlarge
what actually passed to the State, at the time of her admission. Id. at 1235. (Indeed, all questions
regarding equal footing title, including its initial boundaries, are to be uniformly decided under
federal law. See Corvallis Sand & Gravel, 429 U.S. at 376.) The PPL Montana Court further
explained, however, that the scope or contours of the public trust may be determined as a
matter of state law: While equal-footing cases have noted that the State takes title to the navigable
waters and their beds in trust for the public . . . the States retain residual power to determine the
scope of the public trust over waters within their borders . . . . 132 S. Ct. at 1235.
In Indiana, the State can alienate equal footing land by express legislation but lacks authority
to curtail the public trust. Indianas equal footing land is thus subject to the public trust even if the
State relinquishes its title to that land. In other words, title to the States equal footing land cannot
be alienated unless the public trust remains intact. See Illinois Central, 146 U.S. at 45256. As
discussed below in Section IV, states have retained the initial OHWM boundary of the public trust
even though bare title to shore land was conveyed into private hands. See, e.g., Glass, 703 N.W.2d
at 6970, 78. The limits in Kivett and the prohibition in Lake Sand are compatible: Indiana can
convey portions of the Lakebed pursuant to legislation (and only pursuant to legislation) but such
lands remain subject to the public trust.
13
C. No Deed or Other Instrument of Conveyance Is Necessary to Prove the States Title

to Equal Footing and Public Trust Lands.
Gundersons assertion that the State must show a deed or some other conveyance document to
prove it owns the disputed beach is not supported by any law. See Gunderson Br. 2, 3, 56, 8. On
the contrary, this lawsuit is not a dispute over competing deeds, plats, or patents. There is no need
for a patent or deed showing that the federal government passed equal footing title to Indiana at
statehood. The bed of Lake Michigan belongs to Indiana by virtue of joining the Union. See PPL
Montana, 132 S. Ct. at 122728; see also Coastal Petroleum Co. v. Am. Cyanamid Co., 492 So.
2d 339, 342 (Fla. 1986) (Florida received title to all lands beneath navigable waters, up to the
[OHWM], as an incident of sovereignty, when it became a state in 1845. No patents or surveys
were required to delineate the boundaries of such sovereignty lands . . . . (emphasis added)).
Private landowners hold their upland titles subject to the equal footing and public trust
doctrines. As the Louisiana Supreme Court explained, [T]he fundamental rights of the State as
the sovereign to the ownership of the beds of its navigable waters, must be literally read into the
titles of all lands bordering on such waters. State v. Jefferson Island Salt Mining Co., 163 So. 145,
153 (La. 1935).
II. AT STATEHOOD, INDIANA RECEIVED ALL OF THE LAKEBED BELOW THE OHWM,
INCLUDING THE DISPUTED BEACH, IRRESPECTIVE OF THE LOCATION OF THE INSTANT
WATERS EDGE.
Gunderson could own the disputed beach only if one of the following were true: (1) the
Lakebed initially received by the State under the equal footing doctrine did not include the
intermittently submerged shore (below OHWM) when exposed, a proposition we refute in this
section; or (2) the State subsequently disposed of the disputed beach to Gunderson or a predecessor
14
in interest, a proposition we refute in Section III. Because neither possible avenue of ownership
supports Gundersons claim, this Court should find that the State of Indiana, not Gunderson, owns
the disputed beach.
In this section, we present multiple authorities showing that the states, upon admission,
received title to all lands below the OHWM of their navigable waterbodies. These authorities
employ diverse language to explain that federal patents did not include land below the OHWM,
that private ownership does not extend below OHWM, and that equal footing shores remain state
property when temporarily exposed. None of these authorities, and none of which we are aware,
support the proposition that the initial boundary of equal footing lands depends in any way on the
location of the instant waters edge.
A. The Federal Government Did Not Survey or Patent Lands Below OHWM on
Navigable Waterbodies Because Those Lands Were Not Available for Sale to Private
Landowners.
As a general policy and practice, the federal government did not survey or patent land below
the OHWM boundary of navigable waterbodies. See Barney v. Keokuk, 94 U.S. 324, 338 (1876)
(stating that the bed of a navigable water properly belongs to the States by their inherent
sovereignty, and the United States has wisely abstained from extending (if it could extend) its
survey and grants beyond the limits of high water, using the term high water to refer to the high
water mark). This policy has been observed irrespective of the location of the instant waters edge.
Therefore, absent evidence of an express federal grant before 1816, the shore lands below Lake
Michigans OHWM were not available for conveyance into private property.
The Supreme Court articulated this federal policy and its rationale in Shively v. Bowlby, 152
U.S. 1 (1894), the seminal pronouncement of the equal footing doctrine. In Shively, the Court
15
considered the boundary of Congress grant of land bordering the Columbia River to settlers under
the Oregon Donation Act. The Court explained that during the eighteenth and nineteenth centuries
the U.S. Congress constantly acted upon the theory that [public] lands, whether in the interior or
on the coast, above high-water mark, may be taken up by actual occupants . . . but that the
navigable waters and the soils under them . . . shall be held by the United States in trust for the
future states . . . in short, shall not be disposed of piecemeal to individuals, as private property.
Id. at 4950 (emphasis added). The Court thus concluded that the federal Oregon Donation Act
granted no title or right in the land below the Columbia Rivers high water mark: Grants by
congress of portions of the public lands within a territory to settlers thereon, though bordering on
or bounded by navigable waters, convey, of their own force, no title or right below high-water
mark, and do not impair the title and dominion of the future state, when created . . . . Id. at 58.
The 2009 U.S. Manual of Surveying Instructions incorporates the Courts identification in
Shively and Barney that the OHWM is the boundary of a states equal footing title. The Manual
also equates the term waters edge with the OHWM: All lands beneath navigable waters and
other important rivers and lakes are to be segregated from the upland. . . . The general rule is that
when the Federal Government conveys title to a lot fronting on a navigable body of water, it
conveys title to the waters edge, meaning the OHWM or line of [mean high tide on tidelands].
U.S. Dept of Interior, Manual of Surveying Instructions (2009) (Alliance-Dunes Ex. 3), pp. 81
82 3-162 (emphasis added); see also id. p. 183 8-2. It is not surprising that the Manual equates
the term waters edge with the OHWM; by definition, the OHWM marks the location of the
waters outer edge in ordinary circumstances. It is also not surprising that the Manual makes no
16
reference to the instant waters edge; while the instant waters edge is constantly changing, the
OHWM provides a relatively stable and reliable property boundary.
B. Multiple State Courts Have Explained in Different Ways That Equal Footing Land
Is Bounded by the OHWM and Private Property Does Not Extend Below OHWM
Into Those Equal Footing Lands.
Those state courts that have considered the initial boundary of equal footing lands uniformly
accept that this initial boundary is the OHWM. These courts have characterized the OHWM
boundary of equal footing lands in different ways, however.
Some state courts have characterized equal footing lands as lying under navigable waters,
up to the OHWM. For example, the Wisconsin Supreme Court has repeatedly observed that
[t]he title to the beds of all lakes and ponds . . . up to the line of ordinary high-water mark, within
the boundaries of the state, became vested in [the state] at the instant of its admission into the
Union, in trust to hold the same so as to preserve to the people forever the enjoyment of the waters.
R.W. Docks & Slips v. State of Wisconsin, 628 N.W.2d 781, 787 (Wis. 2001) (further explaining
that this title includes the beds of the Great Lakes); State of Wisconsin v. Trudeau, 408 N.W.2d
337, 341 (Wis. 1987). See also State Dept of Natural Res. v. Pankratz, 538 P.2d 984, 988 (Alaska
1975) (acknowledging agreement that Alaska acquired title to the beds of its navigable rivers up
to the OHWM at statehood, pursuant to the equal footing doctrine as codified by the Submerged
Lands Act of 1953); Martin v. Busch, 112 So. 274, 283 (Fla. 1927) (Upon the admission of Florida
into the Union . . . the state, by virtue of its sovereignty, became the owner of all lands under the
navigable waters within the state, including the shores or spaces, if any, between ordinary lowwater mark and ordinary high-water mark . . . .).
17
Other state courts have used an alternative characterization, describing the beds of equal
footing waterbodies as lands bounded by the OHWM. In Reep v. State, for example, the North
Dakota Supreme Court explained that upon entering the union on equal footing with established
States, a newly-admitted State receives absolute title to beds of navigable waters within the States
boundaries from high watermark to high watermark . . . including the shore zone. 841 N.W.2d
664, 671 (N.D. 2013) (citing State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 539 (N.D.
1994)). In Trudeau, the Wisconsin Supreme Court described the dichotomy between state owned
lakebed and the uplands capable of private ownership, defining the uplands as [l]and bordering
bodies of water but above the high water mark. 408 N.W.2d at 342, 342 n.5. See also Nielsen v.
Stratbucker, 325 N.W.2d 391, 393 (Iowa 1982) (The term ordinary high water mark has been
defined as being co-ordinate with the limit of the bed of the water . . . .); State v. George C.
Stafford & Sons, Inc., 105 A.2d 569, 573 (N.H. 1954) ([T]he title of the State to the bed of the
lake extends to the natural high water mark . . . .). Emphasis added in all quotations.
State courts also have characterized the OHWM as the lower boundary of private property, a
conclusion consistent with the policy that the federal government did not survey or patent land
below the OHWM. For example, the Iowa Supreme Court stated in State of Iowa v. Sorensen,
Ownership of the bed of the Missouri River was granted to the State of Iowa under the equal
footing doctrine when Iowa was admitted to statehood. The state owns the bed of the river from
the ordinary high-water mark to the center of the stream[] and the riparian owner owns to the
ordinary high-water mark. 436 N.W.2d 358, 361 (Iowa 1989) (emphasis added) (citations
omitted). The OHWM boundary of private property was confirmed also by the Idaho Supreme
Court in West v. Smith: The State of Idaho holds title to the beds of all navigable bodies of water
18
below the natural high water mark for the use and benefit of the whole people. Ordinarily, in Idaho,
a riparian owner (on a navigable river or stream) or a littoral owner (on a navigable lake) takes
title down to the natural high water mark. 511 P.2d 1326, 1330 (Idaho 1973) (emphasis added).
C. Equal Footing Lands Below OHWM Remain Subject to State Ownership and Public
Trust Even When Temporarily Exposed.
Various jurisdictions, including an Indiana federal court, have concluded that equal footing
title encompasses all lands below the OHWM of navigable waterbodies, even shore lands
intermittently submerged and exposed. State ownership and the public trust preserve citizens
rights to use and enjoy these shore lands whether or not they are presently covered by water.
In United States v. Carstens, the Indiana federal court concluded that Indiana owns the strip of
dry sand between Lake Michigans OHWM and the instant waters edge in trust for the public.
982 F. Supp. 2d 874. The defendant challenged the National Park Services authority to regulate
his use of Indiana Dunes National Lakeshore in the beach area between the toe of the dunes
(which is also the Lake Michigan ordinary high water mark) and the edge of Lake Michigans
water. Id. at 878. In concluding that the Service had jurisdiction, the court found that the dry
beach at issue is not owned by any person, entity, or municipality but, instead, is land held in
the public trust by the State of Indiana. Id. The court observed more generally that [t]he 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. Id.
The Michigan Supreme Court considered the public trust status of that states Great Lakes
shores when they are temporarily dry. In Glass v. Goeckel, the plaintiff Glass sought to enjoin the
defendant landowners from interfering with her walking along the shore of Lake Huron. The Glass
19
Court stated the question to be decided: whether the scope of the public trust doctrine in Michigan
extends up to the ordinary high water mark or whether, as defendants argue, it applies only to
land that is actually below the waters of the Great Lakes at any particular moment. 703 N.W.2d
at 66. After analyzing the public trust doctrine, the Glass Court held that the plaintiff as a member
of the public had a right to walk the shores of the Great Lakes below the ordinary high water
mark, even when the shore is not currently under water. Id. at 78. According to the Court, the
OHWM marks the boundary of land, even if not instantaneously submerged, included within the
public trust. Id. at 7172. The Court also concluded that the public trust attached to the shore
lands regardless of who held bare title to the shore. Id. at 63 n.5, 6566, 6970. The Court further
found the instant waters edge argument of the defendants and dissent to be unsupported by the
law and impracticable to apply. Id. at 7578.
Similarly, the Idaho Supreme Court in In re Sanders Beach considered whether lakeshore
property owners had a littoral right to exclude the public from using the shore below OHWM when
it was not covered by water. 147 P.3d 75, 8486 (Idaho 2006). The Court held that the dry shore
was still state-owned land held in trust for public use. Id. at 85. Thus, the public could not be
excluded from the shore even when the shore was exposed. Id. at 86.
D. Although Various Authorities Have Described the Initial Boundary of Equal Footing
and Public Trust Lands From Different Perspectives, These Authorities Are
Consistent in Placing the Boundary at the OHWM.
The above authorities have characterized the initial OHWM boundary of equal footing title
generally from one of two perspectives. One approach is to consider the littoral (or riparian)
boundary of private title while looking lakeward from the upland or fast land. Authorities use
this perspective to explain, for example, that federal patents do not convey land beyond the OHWM
20
or that a state holds title to all land below the OHWM. A second semantic approach is to consider
the upper boundary of equal footing title while looking landward from the water. From this
perspective, private property would be located above OHWM, while the beds of navigable
waterbodies could be described as lands under navigable waters, extending up to the OHWM.
Gunderson focuses on the terms beneath and under water, and up to the OHWM. He
uses these terms to argue that equal footing and public trust lands will spontaneously spring into
private ownership when, and for as long as, they are exposed by fluctuations in water level.
Gunderson Br. 813. Gundersons claim would temporarily divest Indiana and its citizens of stateowned land with every lakeward movement of the waterline. However, Gunderson has failed to
identify any support for this claim. Indeed, a thorough analysis of existing caselaw reveals that the
different approaches to characterizing equal footing lands are simply alternative expressions of the
same rule of law: lands on the waterbody side of the OHWM pass to new states as an incident of
sovereignty, whereas lands on the upland side of the OHWM are available for federal patent and
private ownership.
The principle that lands beneath or under navigable waters include shore lands alternately
submerged and exposed is illustrated by the Supreme Courts opinion in Shively v. Bowlby, which
used two different semantic approaches to characterize the OHWM boundary of equal footing
lands. Specifically, the Court first referred to lands above high-water mark, which were available
for federal patent and private ownership, and then referred to navigable waters and the soils under
them, which were reserved for the new states. 152 U.S. at 4950. Thus, Shively recognized the
high-water mark as the boundary between two distinct categories of land private and public. The
phrase soils under navigable waters must logically refer to all land below the high-water mark,
21
irrespective of where the waters edge is located at any particular time. The Shively Court makes
no mention of any land below the high-water mark that might be conveyed into private ownership
when temporarily dry.
The Shively Courts characterization of the high-water mark as the boundary between private
and public land is consistent with the established federal dichotomy between private fast lands
(i.e., uplands) and state-owned submerged lands. See, e.g., United States v. Robertson Terminal
Warehouse, Inc., 575 F. Supp. 2d 210, 212 n.1 (D.D.C. 2008) (explaining that fast lands refers
to land that is above or landward of the existing high water mark and [s]ubmerged lands refers
to land that is below the existing high water mark, thus leaving no room for a separate category
of intermittently submerged land). The U.S. Survey Manual also identifies only two categories of
land: All lands beneath navigable waters and other important rivers and lakes are to be
segregated from the upland. Alliance-Dunes Ex. 3, pp. 8182 3-162 (emphasis added).
In focusing on phrases such as lands beneath navigable waters and up to the OHWM,
Gunderson similarly misconstrues the language of the Submerged Lands Act (SLA), 43 U.S.C.
1301 et seq. With respect to inland navigable waters, the SLA merely codified the
constitutionally-based equal footing doctrine. United States v. Alaska, 521 U.S. 1, 5 (1997). In
relevant part, the SLA defines lands beneath navigable waters to include all lands within the
boundaries of each of the respective States which are covered by [navigable] waters . . . up to the
ordinary high water mark. 43 U.S.C. 1301(a)(1). Neither this statutory language nor any judicial
decision applying this statute requires that state-owned land be currently or continuously covered
by water. In fact, the federal court in Carstens applied the SLA to conclude that Indiana owns the
exposed sand located between Lake Michigans OHWM and the instant waters edge. 982 F. Supp.
22
2d at 878. See also United States v. Claridge, 279 F. Supp. 87, 89 (D. Ariz. 1966), affd, 416 F.2d
933 (9th Cir. 1969) (citing the SLA to conclude that Arizona holds title to land underlying the
Colorado River to the easterly ordinary high water mark, without referring to the waters edge);
West v. Smith, 511 P.2d at 1330, 1330 n.1 (explaining that the SLA confirmed Idahos equal
footing title below OHWM, without referring to the waters edge). The SLA confirms equal
footing ownership of all land below the OHWM, including exposed shores.
In the established federal dichotomy of submerged lands versus fast lands, lands that are
continuously, currently, or intermittently submerged on an ordinary basis are all considered
submerged lands. Lands below the extreme low water mark are continuously under water. Lands
below the instant waters edge are currently under water. And shore lands are, by the definition of
OHWM, intermittently under water. As the Michigan Supreme Court explained,
[A] term such as ordinary high water mark attempts to encapsulate the fact that water
levels in the Great Lakes fluctuate. This fluctuation results in temporary exposure of land
that may then remain exposed above where water currently lies. 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.
Glass, 703 N.W.2d at 71. Contrary to Gundersons suggestion, terms such as beneath, under,
or submerged have no implicit time component; that is, these terms do not distinguish between
continuous, current, or intermittent submergence. Gundersons argument that Lake Michigan
shore lands have to be currently under water to be State-owned public trust land is unsupported by
law and is contradicted by the numerous authorities presented above. Despite Gundersons efforts,
he cannot topple 170 years of law merely by identifying variation in the courts characterizations
of the OHWM boundary of equal footing and public trust lands.
23
E. The OHWM Is the Legal Boundary Separating State-Owned Shore Land From
Private Property, Even if Accretion Changes the Location of That Boundary.
Gunderson appears to argue that the disputed beach has emerged from the water of Lake
Michigan and has attached to his upland property as a matter of law. Gunderson Br. 1113.
Assuming that Gundersons property abuts the OHWM and he is thus a riparian (or littoral)
landowner, his argument mischaracterizes the doctrine of accretion, erosion, and reliction 2
(collectively the accretion-reliction doctrine). The accretion-reliction doctrine cannot be used to
establish the legal boundary between public and private land or to show that Gunderson owns any
land below the OHWM.
When the OHWM remains the boundary between State and private ownership, as here, the
legal effect of accretion, reliction, and the other shoreline processes is to change the location of
the OHWM. These processes cannot change the legal designation of the boundary itself. See 4
Tiffany Real Prop. 1220 (3d ed. 2014). For instance, the process of accretion cannot transform
an OHWM boundary into a low water mark boundary. The legal rule that accretion and reliction
can change the where but not the what of property boundaries was explained by the Oregon
Supreme Court as follows: [I]f the line of ordinary high water is the boundary between the bed
of a navigable river, owned by the state, and the privately-owned riparian upland, that boundary
will remain at the line of ordinary high water, although gradual changes in the course of the river
or the contour of the banks may alter the actual location of the high-water line. State of Oregon
Accretion is the gradual addition of land caused by the action of water along a property boundary;
erosion is the gradual removal of land along that boundary. See 93 C.J.S. Waters 182 (2014).
Reliction is the gradual and relatively permanent recession of the water due to lowering water
levels; inundation is the opposite. See id. at 179.
24
ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 582 P.2d 1352, 1361 (Or. 1978). See also
Nielsen v. Stratbucker, 325 N.W.2d at 39495 (Iowa 1982) (quieting title in favor of the state
because the accretions at issue formed below the OHWM and thus merged with state-owned land,
not upland property); Alliance-Dunes Ex. 3, p. 81 3-160 (Survey Manual).
Accretion and erosion can change the location of the natural OHWM by modifying the slope
of the beach such that the water intersects the land in a different location. Over time, the natural
OHWM will migrate, marking the portion of the beach now intermittently submerged. See
Alliance-Dunes Ex. 3, p. 81 3-160 (Survey Manual) (explaining that [w]hen by action of water
the bed of the body of water changes, the OHWM changes, and the ownership of adjoining land
progresses with it). Similarly, the Indiana Department of Natural Resources (IDNR) has
illustrated how accretion and erosion can change the location of the administrative OHWM by
modifying where the elevation of 581.5 ft. intersects with the beach. See Alliance-Dunes Ex. 4.
Reliction and inundation also can change the location of the natural OHWM by modifying the
zone of intermittent submergence, but they would not change the location of the administrative
OHWM because those processes do not change where the 581.5 ft. elevation intersects the shore.
Gundersons assertion that he has acquired title to the disputed beach by means of the
accretion-reliction doctrine is unsupported and contrary to the above rules. Even if this Court
concludes that accretion or reliction has changed the location of the OHWM boundary over time,
the legal boundary between public and private land remains the same the OHWM. Absent a State
conveyance pursuant to legislation, in no circumstance could Gunderson obtain title to land below
the OHWM.
25
III. TODAY, INDIANA STILL OWNS THE DISPUTED BEACH AND HOLDS
CITIZENS, AND GUNDERSON HAS FAILED TO SHOW OTHERWISE.
IT IN
TRUST
FOR ITS
As described in Sections I and II, at statehood Indiana received title to the Lakebed, including
the exposed shore, to be held in trust for its citizens. In this section we demonstrate that Indiana
has neither relinquished its title nor abandoned its public trust duties in the shore containing the
disputed beach. We also show that Gunderson has failed to designate evidence showing he owns
any land below OHWM. Lastly, we argue that past decisions giving up equal footing title to
specific shore lands do not govern this case. The boundary between public and private land on the
disputed beach was initially the OHWM, and it remains the OHWM.
A. Indiana Has Not Relinquished Title to the Disputed Beach Nor Abrogated Public
Trust Rights and Duties in Lake Michigan.
1. No evidence shows that the State has conveyed its title in the disputed beach.
Under settled Indiana law, no entity except the Indiana Legislature has the power to dispose of
Indianas equal footing lands. Kivett, 95 N.E.2d at 148. The legislature has exercised such authority
by enacting the fill and patent statute, Indiana Code 14-18-6-1 et seq., which allows the State
to relinquish ownership of specific portions of the Lakebed provided statutory hurdles are satisfied.
See Ind. Code 14-18-6-4 and 6-6. The State has issued patents pursuant to this statute, and these
conveyances of State land generally are available in the public record. See Alliance-Dunes Ex. 5.
Gunderson, however, has not designated any evidence suggesting that he or his predecessor in
interest ever applied for or received a State patent to the disputed beach under this or any other
statute. Indiana obtained title to the disputed beach in 1816, and has never given it away. Therefore,
Indiana retains its initial title to the disputed beach.
26
2. The actions of Indianas executive branch are inconsistent with alienation of equal
footing title to lands below OHWM.
For decades, Indianas officers and executive agencies have repeatedly confirmed that the State
claims title to the entire bed of Lake Michigan below the OHWM, including the temporarily
exposed shore.
The Indiana Attorney General issued an opinion in 1978 concluding that the boundary of the
State-owned bed of Lake Michigan is the OHWM. The opinion states, [I]n general, the State of
Indiana owns the land lakewards of the ordinary high water mark on the Lake Michigan shore.
Alliance-Dunes Ex. 6. Over a decade later, former Attorney General Linley E. Pearson reiterated
this position: The State of Indiana owns the land lakewards of the ordinary high water mark on
the Lake Michigan shore. Op. Ind. Atty Gen. No. 90-8 (Apr. 17, 1990), 1990 WL 484814, *2.
See also Op. Ind. Atty Gen. No. 80-26 (Oct. 8, 1980), 1980 WL 26192, *1 (stating that [t]he
State holds lands under the waters of Lake Michigan within the State boundaries in trust for all the
people of the State, citing Lake Sand).
Multiple regulations reference the OHWM as the boundary of regulatory jurisdiction and in
some instances State ownership: for example, 312 IAC 6-1-1(b) ([T]he line of demarcation for a
navigable waterway is the ordinary high watermark.); 312 IAC 6-7-7(d) (A person may obtain
title to lands within the ordinary high watermark of Lake Michigan only upon compliance with IC
14-18-6.). Notably, 312 IAC 6-8-3(c) authorizes IDNR to deny an application by a riparian
landowner to place a structure below the OHWM of Lake Michigan if such a structure would
violate the public trust doctrine.
27
IDNR states in Indiana Lake Michigan Shoreline: Coastal Hazards Model Ordinances that a
public beach in Indiana includes the portion of the Indiana Lake Michigan coastline lying lakeward
of the [administrative] ordinary high water mark. Alliance-Dunes Ex. 4. The diagram
accompanying this statement shows that, according to IDNR, the administrative OHWM is the
boundary of public use and ownership regardless of whether the instant waters edge is above or
below that mark. Id. This diagram directly undermines Gundersons argument that the shore must
be currently covered by water to be public land; the diagram shows that the shore exposed remains
part of the Lakebed and therefore public land.
IDNR modified this diagram for one website posting during the period leading up to
Gundersons lawsuits. See Gunderson Mot. Exs. 45. The new posting states that the
administrative OHWM 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. See Gunderson Mot. Ex. 5 (emphasis added). This ultimately
futile attempt to avoid litigation did not alter state law. Moreover, IDNR retained the original
diagram in Indiana Lake Michigan Shoreline: Coastal Hazards Model Ordinances (AllianceDunes Ex. 4).
Similarly, the NRC document Lake Michigan and Navigable Tributaries: Misconceptions and
Issues of Navigability states, Reduced to the most basic terms, the physical area of a navigable
river or lake is what is included within its ordinary high watermark. . . . Similarly, beaches along
Lake Michigan which emerge during low-water periods are also public domain. Alliance-Dunes
Ex. 7 (emphasis added).
28
3. Indiana has not abrogated the public trust that applies to Lake Michigan.
Gundersons argument that the Lake Preservation Act (Act) extinguished the public trust
doctrine by implication (Gunderson Br. 14) ignores binding precedent concerning both the extent
of the States authority and the proper construction of Indiana statutes.
The Act (Indiana Code 14-26-2-1 et seq.) codified public trust rights for most of Indianas
freshwater lakes but expressly does not apply to Lake Michigan. As a result of this express
omission, the common law public trust doctrine continues to govern citizens rights in the Lakebed.
It could not be otherwise; under Indiana law, [t]he state in its sovereign capacity is without power
to convey or curtail the right of its people in the bed of Lake Michigan. Lake Sand, 120 N.E. at
716.
Apart from the recognition in Lake Sand that the State cannot abrogate public trust rights on
Lake Michigan, the Lake Preservation Act cannot be construed to abrogate those rights. When
interpreting a statute, the Indiana Supreme Court will presume that 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) (quoting Hinshaw v.
Bd. of Commrs, 611 N.E.2d 637, 639 (Ind. 1993)). Abrogation of the common law can be implied
only if a statute is enacted which undertakes to cover the entire subject treated and was clearly
designed as a substitute for the common law or the two laws are so repugnant that both in reason
may not stand. Irvine v. Rare Feline Breeding Ctr., Inc., 685 N.E.2d 120, 123 (Ind. Ct. App.
1997), trans. denied.
First, the Act does not expressly abrogate common law. Second, because Lake Michigan was
expressly excluded, the Act does not conflict with, substitute for, or undertake to cover the public
29
trust doctrine with respect to Lake Michigan. There is simply no evidence that the Indiana
Legislature intended to strip Indiana citizens of their public trust rights in the bed of Lake
Michigan. See Lake Sand, 120 N.E. at 716.
B. Gunderson Has Failed to Designate Evidence Showing He Owns Any Property Below
Lake Michigans OHWM.
Gunderson asserts under the heading Undisputed Designated Facts that his property lots
extend at least as far north as the waters edge of Lake Michigan. Gunderson Br. 2. This assertion
is argument, not fact. Moreover, the documents on which Gunderson relies do not support his
argument. Neither his deed, nor the 1914 plat referenced in his deed, nor the Hendricks 1984 Town
survey shows that his property boundary extends any further than the OHWM of the bed of Lake
Michigan. Gunderson has not satisfied his burden to make a prima facie case that he is the owner
of the shore land in dispute.
1. Gunderson has failed to designate any evidence that the labels Lake Michigan
and Lake Edge mark the boundary of his property.
Gundersons deed and plat do not contain the term waters edge. The Hendricks Town
survey does not contain this term either. Gunderson concedes that the only term in his deed and
plat that could be a boundary term is the label Lake Michigan, which appears at the top of the
1914 plat. See Gunderson Mot. Exs. 1AB. However, whether this label represents the boundary
of the platted lots is unknown. The conveyance instruments do not define Lake Michigan or
identify the label as a property boundary. The label may simply indicate the general location of
the Lake. Gunderson has not designated any evidence to indicate that the label Lake Michigan
should be construed as the boundary of the platted properties.
30
Similarly, Gunderson points to the label Lake Edge appearing in drawings from the
Hendricks Town survey. Gunderson Br. 2. As with the label Lake Michigan, the label Lake
Edge is undefined and nothing indicates that Lake Edge should be construed as a lot boundary.
In fact, Judge Alevizos appropriately ruled in Gunderson et al. v. the Town of Long Beach, Cause.
No. 46C01-1212-PL-1941, that the terms appearing in Hendricks 1984 surveys, including the
label Lake Edge, do not delineate the northern boundary of the [plaintiffs] lots. See AllianceDunes Ex. 8, Analysis 7.
2. Even if the labels Lake Michigan and Lake Edge were boundary terms,
Gunderson has failed to present evidence or authority showing that these
ambiguous labels describe the instant waters edge.
Gunderson asserts that the labels Lake Michigan and Lake Edge should be interpreted as
the location of the waters edge at any particular moment. See Gunderson Br. 2 and Mot. Ex. 3.
However, even if these labels identify the northern boundaries of the platted property lots, it would
not follow that Gundersons property extends below the OHWM.
The labels Lake Michigan and Lake Edge are ambiguous; that is, several different
meanings are possible. A surveyor is not authorized to construe boundary terms such as Lake
Michigan. See Wilson v. Powell, 37 Ind. App. 44, 75 N.E. 611, 612 (Ind. Ct. App. 1905)
(concluding a surveyor does not have power to interpret terms in a description of property).
Instead, ambiguous terms used to describe the boundaries of real property must be construed by
the courts as a matter of law. See Ayers v. Huddleston, 30 Ind. App. 242, 66 N.E. 60, 63 (Ind. Ct.
App. 1903) (What are the boundaries of a particular tract of land is a matter of law, but where the
boundaries of a tract are located is a matter of fact.); 12 Am. Jur. 2d Boundaries 112 (same).
31
The analysis in Matteson v. Batchelder, 32 A.3d 1059 (Me. 2011), is illustrative of judicial
construction of a boundary term. The Matteson Court construed the disputed boundary term
shoreline in a deed. Id. at 1063. The Court found that the use of the term shoreline without
more is ambiguous because that term may refer to either the high-water mark or the low-water
mark. Id. at 1064. The Court then considered extrinsic evidence and concluded that shoreline
referred to the high-water mark. Id.
Like the term shoreline in Matteson, the labels Lake Michigan and Lake Edge here could
refer to the OHWM, the low water mark, or some point in between. These labels are not sufficiently
precise to determine the disputed boundary. Likewise, any phrase that contains the term Lake
Michigan also is ambiguous. Even the term waters edge, while more specific than the labels
upon which Gunderson relies, would be too ambiguous to define property boundaries. For
example, the Michigan Supreme Court in Glass v. Goeckel noted that references in other states
to waters edge often tie that term to either a high or low water mark. 703 N.W.2d at 76 n.29.
The Wisconsin Supreme Court in Wright v. Day equated waters edge with high water mark.
33 Wis. 260, 264 (Wis. 1873).
If this Court were to construe the term Lake Michigan or Lake Edge, or the phrase land
abutting Lake Michigan, it would be necessary to determine the legal boundary of the Lakebed
itself. Where a private landowner pits his deed against sovereign equal footing land, as Gunderson
does here, the boundary of private title must be construed to be in harmony with the boundary of
the States equal footing title and the imprinted public trust. See Jefferson Island Salt, 163 So. at
153 ([T]he fundamental rights of the State as the sovereign to the ownership of the beds of its
navigable waters, must be literally read into the titles of all lands bordering on such waters.).
32
As described above, multiple state and federal courts have concluded that the OHWM is the
initial boundary of the bed of a navigable waterbody such as Lake Michigan. See, e.g., United
States v. Kansas City Life Ins. Co., 339 U.S. 799, 805 (1950) (The ordinary high-water mark has
been accepted as the limit of the bed of the stream.); Oklahoma v. Texas, 260 U.S. 606, 632 (1923)
(defining the limit of the bed of a river as the OHWM); Reep, 841 N.W.2d at 671 (explaining that
a newly-admitted State receives absolute title to beds of navigable waters within the States
boundaries from high watermark to high watermark . . . including the shore zone); Trudeau, 408
N.W.2d at 342, 342 n.5 (describing dichotomy between state owned lakebed and the uplands .
. . above the high water mark capable of private ownership); Nielsen, 325 N.W.2d at 393 (The
term ordinary high water mark has been defined as being co-ordinate with the limit of the bed
of the water . . . .); Stafford, 105 A.2d at 573 ([T]he title of the State to the bed of the lake
extends to the natural high water mark . . . .).
Even if Gundersons designated documents had used the term waters edge, that term also
would require interpretation by the Court. And in light of the authorities presented in Section II,
the soundest interpretation would be the OHWM. See, e.g., U.S. Manual of Surveying Instructions
(Alliance-Dunes Ex. 3), pp. 8182 3-162 (equating waters edge with the OHWM).
3. Regardless of the terminology used, the documents upon which Gunderson relies
are legally insufficient to delineate the boundary of equal footing lands.
Regardless of any potential boundary terms in Gundersons deed and plat or in the Hendricks
survey, these documents cannot convey equal footing land. The State owns the Lakebed below
OHWM. Any attempt by an entity other than the State to convey any portion of the Lakebed would
be invalid because a grantor cannot convey a property interest that the grantor does not have. See
23 Am. Jur. 2d Deeds 274 (2013).
33
Even the federal government could not lawfully have conveyed Indianas equal footing land
after 1816. See Corvallis Sand & Gravel, 429 U.S. at 376 (stating that federal government has no
power to convey lands which are rightfully the States under the equal-footing doctrine); Borax
Consol. Ltd. v. City of Los Angeles, 296 U.S. 10, 1921 (1935) (holding that a federal survey is
not conclusive against the state as to the boundaries of equal footing lands); Illinois Steel Co. v.
Bilot, 84 N.W. 855, 856 (Wis. 1901) (A government patent of land bordering on a lake or pond,
regardless of the boundaries thereof according to the government survey, does not convey title to
the lands below the line of ordinary high-water mark.).
Thus, even if Gundersons post-1816 deed and plat purported to convey title to the disputed
beach, of which there is no evidence, such a conveyance would be worth no more than the
proverbial deed to the Brooklyn Bridge. In the absence of specific state legislation or a rare preadmission federal grant, there can be no transfer of Indianas equal footing lands.
C. Court Decisions That Relinquished Equal Footing Title Do Not Govern This Case.
New states received equal footing title to lands below the OHWM of navigable waterbodies,
regardless of the date of statehood and irrespective of whether the states realized what they had
obtained. By the time the U.S. Supreme Court first articulated the equal footing doctrine in 1845
in Pollards Lessee, twenty-six states had already joined the Union. At least a dozen more were
admitted, each crafting common law rules of property, before the Court clearly explained that the
OHWM is the initial boundary of equal footing title and public trust rights on non-tidal navigable
waterbodies. See Shively, 152 U.S. 1 (1894); Barney, 94 U.S. 324 (1876). By the time of the
seminal Barney and Shively decisions, some state courts had already set the boundary of state
ownership on navigable waterbodies at points below the OHWM. These early court decisions in
34
effect relinquished state title to shore lands without a full understanding that these shores belonged
to the state under the equal footing doctrine. These courts may now be reluctant to overturn those
early decisions. But past decisions that unknowingly divested a state of shore-land title should not
be extended to waterbodies where the state still owns the shores, such as Indianas portion of Lake
Michigan. New disputes over the boundary of equal footing title, such as the present case before
this Court, should be decided using our modern understanding of the equal footing doctrine. No
past decision relinquishing equal footing title governs this dispute or pertains to Lake Michigan.
1. Indiana gave away title to its shore of the Ohio River in 1837 for reasons not
applicable to modern law or to Lake Michigan.
Gunderson mistakenly applies a special early-1800s rule, which set the boundary of State
ownership on the Ohio River shore at the low water mark, to all equal footing lands within
Indianas borders. Gunderson Br. 14. Examination of the rules origins and rationale reveals that
it pertains exclusively to the Ohio River.
The low water mark of the Ohio River was the southern boundary of the Northwest Territory
ceded to the federal government by Virginia. Indianas southern border is thus the low water mark
of the river. The low-water-mark boundary rule for private property bordering Indianas side of
the Ohio River is based on root precedent in Stinson v. Butler, 4 Blackf. 285 (Ind. 1837) (accord
Bainbridge v. Sherlock, 29 Ind. 364, 367 (1868)). The Stinson Court concluded that because the
low water mark of the Ohio River is the southern boundary of the Northwest Territory (see
Handlys Lessee v. Anthony, 18 U.S. 374 (1820)), when land situated on the Ohio River is
conveyed the same mark must be considered as the boundary of the grant. 4 Blackf. at 285.
Stinson and Bainbridge are thus unique to the Ohio River as a territorial border.
35
A few decades after Stinson was decided, the Indiana Supreme Court was open to questioning
the validity of the reasoning in Stinson. In Sherlock v. Bainbridge, 41 Ind. 35 (1872), the Court
expressed reluctance to overturn what had become a settled rule of property with respect to the
Ohio River, but indicated that the Court might set the boundary of private property at the OHWM
were the [issue] an original and open one. Id. at 41.
Moreover, Stinson was decided in 1837, nearly a decade before the U.S. Supreme Court first
articulated the equal footing doctrine. See Pollards Lessee, 44 U.S. 212 (1845). Both Stinson
(1837) and its offspring Bainbridge (1868) were decided before Barney v. Keokuk (1876), which
clarified that the equal footing doctrine applies to the beds of both tidal waters and navigable, nontidal waters such as the Ohio River and Lake Michigan. 94 U.S. at 338. Without the benefit of
Barney, the Stinson Court relied on the now-rejected rule that the OHWM boundary of public title
applies only to tidal waters. 4 Blackf. at 285; see also Illinois Central, 146 U.S. at 43537
(rejecting tidal rule and noting that Lake Michigan is in any event treated as a tidal sea for
purposes of public trust). The Indiana Court thus unknowingly relinquished equal footing title on
the Ohio River. But that was a unique decision limited to that particular waterbody and
circumstance.
2. The Ohio and Illinois decisions that relinquished title do not apply to Indiana.
Ohio and Illinois courts have ruled that when a real estate conveyance calls for a lake as the
boundary, the littoral owners property interest extends to the line at which the water usually
stands when free from disturbing causes. State ex rel. Merrill, 955 N.E.2d 935, 947 (Ohio 2011);
Brundage v. Knox, 117 N.E. 123, 13031 (Ill. 1917). These Ohio and Illinois decisions in turn
relied on the root precedent in Seaman v. Smith, 24 Ill. 521, 525 (Ill. 1860) ([T]he line at which
36
the water usually stands, when free from disturbing causes, is the boundary of land in a conveyance
calling for the lake as a line.). The extension of these Illinois and Ohio decisions to Indiana is
unwarranted.
As with Indianas Ohio River cases, Seaman v. Smith was decided before the U.S. Supreme
Court clarified that the equal footing doctrine and the OHWM boundary apply to non-tidal
navigable waterbodies. Moreover, subsequent decisions by the Illinois and Ohio courts have
applied Seaman without analyzing the strength or validity of its reasoning in light of modern
understandings. See Merrill, 955 N.E.2d at 947, 949 (stating that [m]ore than 130 years ago the
Ohio courts adopted the Seaman boundary rule and [w]e see no reason to modify that law now);
Brundage, 117 N.E. at 131 (refusing to consider OHWM as boundary of private title because
Illinois precedent controlled). With respect to an economically and culturally important resource
such as Lake Michigan, this Court should adopt a carefully considered rule that is consistent with
the now well-established reasoning of the U.S. Supreme Court.
IV. INDIANA CITIZENS HOLD THE RIGHT TO RECREATE ON THE BED OF LAKE MICHIGAN
BELOW THE OHWM IRRESPECTIVE OF WHO HOLDS BARE TITLE TO THE SHORE.
A. The Public Trust Doctrine Protects Indiana Citizens Right to Recreate on the Shore
of Lake Michigan.
Although Gunderson acknowledges that navigable waterbodies are common highways
(Gunderson Br. 9), he implies, without citing authority, that the public can use the water and bed
of such a waterbody only for navigation and waterborne commerce. Id. at 8. Such an assertion
finds no support in the law and conflicts with the persuasive reasoning of numerous courts.
In 1892, the U.S. Supreme Court confirmed that Illinois holds title to the bed of Lake Michigan
within its borders in trust for the people of the state, that they may enjoy the navigation of the
37
waters, carry on commerce over them, and have liberty of fishing therein, freed from the
obstruction or interference of private parties. Illinois Central, 146 U.S. at 452 (emphasis added).
At the time Illinois Central was decided, navigable waters were primarily valued as fishing
grounds and as highways for commerce. Irrespective of whether the Illinois Central Court applied
federal or Illinois law, there is nothing in Illinois Central or in any of its progeny that limits the
scope of the public trust to nineteenth-century forms of public use. The public interest in Lake
Michigan is not limited to such uses. As the Supreme Court recently reiterated in PPL Montana,
each state possesses the authority to define the scope of the public trust doctrine within its borders.
132 S. Ct. at 123435.
Even well before Illinois Central, however, states protected a wide range of public activities
in navigable waterbodies and their beds. See, e.g., Atty Gen. v. Woods, 108 Mass. 436, 43940
(1871) (recognizing that all public uses of navigable waters, such as bathing, boating, skating,
fishing and fowling, are entitled to equal consideration, because a traveler for pleasure is as
fully entitled to protection . . . as a traveler for business); Arnold v. Mundy, 6 N.J.L. 1, 12 (1821)
(finding that each person has a right to use both the water and the land under the water for the
purposes of passing and repassing . . . and all the other uses of the water and its products according
to his pleasure). As the Indiana Supreme Court broadly acknowledged in 1872, a riparian
landowners use of the lands ordinarily covered by water . . . must in all cases be subordinate to
the paramount public right of navigation, and such other public rights as may be incident thereto.
Sherlock v. Bainbridge, 41 Ind. at 47 (emphasis added) (quoting Rice v. Ruddiman, 10 Mich. 125,
140 (1862)).
38
Several courts have recognized that public uses of waterbodies change over time and that the
scope of the public trust incorporates changing public uses and priorities. As the Iowa Supreme
Court explained, [t]he public trust doctrine . . . is not limited to navigation or commerce.
Sorensen, 436 N.W.2d at 363. Instead, it applies broadly to the publics use of property, such as
waterways, without ironclad parameters on the types of uses to be protected. Id. See also NekoosaEdwards Paper Co. v. R.R. Commn, 228 N.W. 144, 147 (Wis. 1929), affd 283 U.S. 787 (1931)
(While the public right may have originated in the older use or capacity of the waters for
navigation, such public right having once accrued also applies to the use of navigable waters for
any other public purpose.).
In the Great Lakes region, most states expressly recognize and zealously protect recreation as
a public trust use, perhaps reflecting the economic and social importance of outdoor activities and
nature tourism. See, e.g., Glass v. Goeckel, 703 N.W.2d at 74, 78 (concluding that activities
protected by the public trust doctrine include fishing, hunting, and navigation for commerce or
pleasure as well as walk[ing] the shores of the Great Lakes below the ordinary high water
mark); R.W. Docks & Slips v. State, 628 N.W.2d 781, 78788 (Wis. 2001) (explaining that
[a]lthough the public trust doctrine originally existed to protect commercial navigation, it now
safeguard[s] the publics use of navigable waters for purely recreational purposes); Lamprey v.
Metcalf, 53 N.W. 1139, 1143 (Minn. 1893) (recognizing with approval the changes over time in
protected public uses of navigable waterbodies). Indeed, over eighty years after the Illinois Central
Court identified only three categories of public use, even Illinois acknowledged that public rights
in Lake Michigan may extend to recreational uses, including . . . shore activities. People ex rel.
39
Scott v. Chicago Park Dist., 360 N.E.2d 773, 780 (Ill. 1976) (quoting Borough of Neptune City v.
Borough of Avon-By-The-Sea, 294 A.2d 47, 54 (N.J. 1972)).
Recognizing recreation on shore lands as a public trust use does not expand the public trust
doctrine but rather reflects the understanding that such uses have always been inherent in those
resources. Recreational use of Indianas Lake Michigan shore is incident to the three categories of
use acknowledged in Illinois Central i.e., fishing, navigation, and commerce. Recreation on the
Lake Michigan shore promotes commerce and contributes significantly to Indianas economy. See
Great Lakes Commission, Great Lakes Restoration at Work in Indiana (March 2013), available at
http://www.glc.org/files/main/Indiana-GLRIStateFactsheet2013-final-Feb28.pdf (last visited Feb.
1, 2015). Moreover, activities on exposed shores, such as walking and sitting, have long been
recognized as incident to and necessary for enjoyment of the water. See, e.g., White v. Hughes,
190 So. 446, 449 (Fla. 1939) (Private ownership stops at high-water mark. . . . It is difficult indeed
to imagine a general and public right of fishing in the sea, and from the shore, unaccompanied by
a general right to bathe there, and of access thereto over the foreshore for that purpose.).
The bed and waters of Lake Michigan, including its shore lands, are a unique natural and
economic resource best suited to public uses. That idea underpins the traditional public trust
doctrine. No state or federal law requires this Court to limit public trust uses to waterborne
navigation or to prevent the public from recreating along its intermittently exposed shores. A
decision to curtail peaceful, recreational use below the OHWM would conflict with the letter and
spirit of Indianas public trust doctrine and run counter to the nationwide trend to protect
recreational use of shore lands.
40
B. Public Trust Rights and Obligations Apply to the Shore of Lake Michigan Regardless
of Who Holds Bare Title.
A states alienation of bare equal footing title does not modify the public trust imprinted on
that title. See Glass, 703 N.W.2d at 6466, 6970 (considering questions of public trust separately
from questions of state title and holding that the OHWM is the boundary of public trust even where
bare title is in private hands). In Indiana, abrogation of public trust rights is prohibited even though
transfer of equal footing title is allowed. Thus, even if the State had transferred its title in the
disputed beach to Gunderson, Indiana citizens public trust rights would still apply to shore land
below the OHWM.
The majority of Great Lakes states Illinois, Michigan, Minnesota, Pennsylvania, and
Wisconsin have strongly affirmed that public trust rights extend to shores of navigable
waterbodies below OHWM regardless of who owns the shore. See Glass, 703 N.W.2d at 6970,
78 (Mich. 2005); Trudeau, 408 N.W.2d at 34142 (Wis. 1987); Shaffer v. Baylors Lake Assn,
141 A.2d 583, 585 (Pa. 1958); Mitchell v. City of St. Paul, 31 N.W.2d 46, 4950 (Minn. 1948);
Cobb v. Lincoln Park Comrs, 67 N.E. 5, 6 (Ill. 1903); see also Kilbert, 58 Clev. St. L. Rev. at 40
58.
CONCLUSION
Navigable waterbodies, and particularly the lands along their borders e.g., beaches and
wetlands are of special value to society as a matter of tradition, culture, ecological services, and
economic health. At Indianas statehood, the OHWM was the initial boundary separating the equal
footing bed of Lake Michigan from the uplands available for private ownership. Today, on the
disputed beach, the OHWM remains the boundary of State title and public trust.
41
Alliance-Dunes respectfully request that this Court deny summary judgment to Gunderson and
grant summary judgment in favor of Defendants and Intervenor-Defendants.
WORD COUNT CERTIFICATION

I verify that this memorandum in relevant part contains no more than 14,000 words. See Ind.
Appellate Rule 44(E) (word limit for Appellants and Appellees brief is 14,000 words). This
document specifically contains 13,121 words in relevant part.
Respectfully submitted,
________________________________________
116 S. Indiana Ave.
Bloomington, Indiana 47408
812.856.5737 [Voice]
812.855.1828 [Fax]
jbhyman@indiana.edu
Attorney for Intervenor-Defendants Alliance for the Great Lakes and Save the Dunes.
42
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing was served by
U.S. Mail, first class, postage prepaid, this 2nd day of February, 2015, on the following counsel of
record:
Michael V. Knight
D. Michael Anderson
Barnes & Thornburg LLP
600 1st Source Bank Center
100 North Michigan Street
South Bend, IN 46601
Jeffrey L Simnick
Office of Attorney General
IGCS-5th Floor
302 W. Washington Street
Indianapolis, IN 46204
Kurt R. Earnst
Braje, Nelson, & Janes LLP
126 E. 5th Street
Michigan City, IN 46360
Patricia F. Sharkey
Environmental Law Counsel, P.C.
Suite 3700, 180 North LaSalle St.
Chicago, IL 60601
Mark L. Phillips
Matthew J. Hagenow
Newby, Lewis, Kaminski
& Jones, LLP
916 Lincolnway
LaPorte, IN 46350
_______________________________
Jeffrey B. Hyman
43

Brief of Save The Dunes and Alliance For The Great Lakes in Support of Summary Judgment

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STATE OF INDIANA

IN THE LAPORTE SUPERIOR COURT NO. 2

DON H. GUNDERSON and BOBBIE J.

CASE NO. 46D02-1404-PL-0606

visited Nov. 24, 2014).

visited Nov. 24, 2014).

Dated: February 2, 2015

IN THE LAPORTE SUPERIOR COURT NO. 2

DON H. GUNDERSON and BOBBIE J.

CASE NO. 46D02-1404-PL-0606

GUNDERSON CHALLENGES INDIANAS LONG-SETTLED OWNERSHIP OF LAKE MICHIGANS

Title to the bed of Lake Michigan passed to Indiana at statehood under

Indianas title to the bed of Lake Michigan is permanently imprinted

No Deed or Other Instrument of Conveyance Is Necessary to Prove the States

AT STATEHOOD, INDIANA RECEIVED ALL OF THE LAKEBED BELOW THE OHWM,

TABLE OF CONTENTS (continued)

Although Various Authorities Have Described the Initial Boundary of Equal

The actions of Indianas executive branch are inconsistent with

Gunderson Has Failed to Designate Evidence Showing He Owns Any Property

Regardless of the terminology used, the documents upon which

TABLE OF CONTENTS (continued)

TABLE OF AUTHORITIES (continued)

TABLE OF AUTHORITIES (continued)

OTHER STATE CASES

TABLE OF AUTHORITIES (continued)

TABLE OF AUTHORITIES (continued)

TABLE OF AUTHORITIES (continued)

INDIANA TRIAL RULES

TABLE OF AUTHORITIES (continued)

TABLE OF AUTHORITIES (continued)

INTRODUCTION AND ROAD MAP

C. No Deed or Other Instrument of Conveyance Is Necessary to Prove the States Title

WORD COUNT CERTIFICATION

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